Budh Singh and others vs Raunaq Singh and others

Teja Singh, C.J.—The following three questions have been referred to the Full Bench:

Whether a suit for possession of the property alienated by a widow governed by customary law, on the ground that the alienation was without consideration and necessity and accordingly it did not affect the reversionary rights of the plaintiff, brought after the widow''s death, is governed by Art. 2 of the Patiala (Limitation) Custom Act (No. X of 2000).

Whether the fact that in a suit of the nature mentioned in question No. 1, the plaintiff alleges that the suit property is ancestral qua him, would by itself attract the application of Article 2 to it, even though the widow''s power of alienation is restricted regardless of the fact whether the property is ancestral or not; and

If the answer to questions Nos. 1 and 2 is in the negative, is a suit of this nature governed by Article 141 of the Limitation Act.

It is unnecessary to refer to the facts of the case out of which the reference to the Full Bench has arisen, because the questions involved are purely ones of law. Article 2 of the Patiala (Limitation) Custom Act (No. X of 2000) reads as follows: "A suit for possession of ancestral immovable property which has bean alienated on the ground that the alienation is not binding on the plaintiff according to custom :

(a) if no declaratory decree of the nature referred to in Art. 1 is obtained;

6 years (to be reckoned as in the case of Art. 1;

(b) if such declaratory decree is obtained.

3 years from the date on which the right to sua accrues or the date on which the declaratory decree is obtained, whichever is later.

Article 1 to which reference is made in the above article relates to a suit for a declaration that an alienation of ancestral immovable property will not, according to custom, be binding on the plaintiffs after the death of the alienor or (if the alienor is a female) after her death or forfeiture of her interest in the property and the time provided is 6 years, the ''terminus quo'' being firstly, if the alienation is by a registered deed, the date of registration of such deed and secondly, if the alienation is not by a registered deed (a) if an entry regarding the alienation in the Register of Mutations has been attested by a Revenue Officer under the Punjab Land Revenue Act, 1887, in force ''mutatis mutandis'', the date on which the entry is attested, and (b) if such entry has not been attested, the date on which alienee takes physical possession of the whole or any part of the property alienated in pursuance of such alienation, and (c) in all other cases, the date on which the alienation comes to the knowledge of the plaintiff.

As regards the first question, it is true that the words of Article 2 are not clear, and it is not mentioned therein that the suits to which it relates would also include a suit for possession of immovable property which has been alienated by a female owner; but, if we read the Article along with Article 1, there can be no doubt that the intention of the legislature was that its scope should be wide and it should apply to all kinds of suits for possession of ancestral immovable property, whether alienated by a male owner or a female owner, provided the plaintiff''s claim is based upon the allegation that the alienation is not binding upon him according to custom. That the two Articles have to be read together is indicated by the fact that the period of limitation for the suit for possession as provided in Article 2 depends upon the fact whether a declaratory decree has been obtained by the plaintiff in accordance with Art. 1, or not. It will be seen that Article 1 refers, in so many words to an alienation by a female and it cannot be denied that it applies to an alienation made by a male owner as well as to one by a female owner. It, therefore, follows that Article 2 also applies to both kinds of suits, the difference between this Article and Article 1 being that while the one relates to a suit for possession the operation of the other is confined to one for a declaration. Upon this point counsel for the parties were agreed. The respondents'' counsel, however, urged that in order that Article 2 should apply, another condition must also be satisfied, namely, that the suit property should be ancestral immovable property.

The position taken up by the appellant''s counsel, on the other hand, was that inspite of the fact that the words "ancestral immovable property" occur in the Article, as they do in Art. 1, the mere fact that the property is ancestral or is alleged to be ancestral is not sufficient and that the application of it is attracted only where it is necessary for the plaintiff to prove that the alienation which he is challenging, is not binding upon him because the property is ancestral. He argued that if the power of the alienor, as for example when she is a female, is so limited by custom that whether the property is ancestral or not she has no power to alienate it except for necessity, etc. and, in order that the plaintiff might succeed in his suit, it is not necessary for him to prove the ancestral nature of the property or even to allege it, neither Article 2 nor Article 1 would apply. In support of his contention, learned counsel placed his reliance upon the observations made by Achhru Ram J. in ''Narotam Chand v. Mst. Durga Devi'', AIR 1949 EP 109 (FB). In that case two questions were referred to the Full Bench. The first question was whether the Punjab Limitation (Custom) Act (No. 1 of 1920) governed suits brought by female heirs or other cognate relations to challenge alienations made by a widow who was in possession of the property of her husband and which had descended to him from his ancestors. The second was whether the property of maternal grandfather in the hands of the grandson should be treated ancestral qua his son and could be regarded as such while it was in the hands of the daughter.

The Full Bench, which consisted of five Judges, answered both the questions in the negative. Achhru Ram J. agreed with his learned colleagues as regards the answers to the questions mentioned above, but he took exception to the view taken by Mahajan J. with whom the remaining three Judges agreed that Articles 1 and 2 of the Punjab Act would apply to any suit brought by the collaterals of the last male holder to set aside the alienation made by the widow of such holder of property which is ancestral qua such collaterals. In this respect he adhered to his own view that he had expressed in ''R.S.A. No. 194 of 1945'' that "the operation of the said Articles was limited only to cases in which the plaintiff has, whether he is a collateral of the last male holder or not, to allege and prove the property alienated to be ancestral qua him in order to succeed." In the order by which I referred the present case to the Full Bench, I remarked that I was inclined to accept the observations made by Achhru Ram J. as correct, but, on further consideration, I have now formed a different opinion and I shall briefly give my reasons for doing so. In Article 1 as well as in Article 2, the scope of the suit is defined. In the case of Article 1 it is to be a suit for a declaration that an alienation of ancestral immovable property will not according to custom, be binding on the plaintiff after the death of the alienor, or when the alienor is a female after her death or forfeiture of her interest in property. This means that the following conditions will have to be satisfied before the Article can apply: (i) it should be a suit for a declaration; (ii) the declaration should be sought in respect of an alienation; (iii) the property, subject-matter of the alienation, should be ancestral immovable property, and (iv) that the plaintiff must base his claim upon custom. As regards Article 2, the conditions to be satisfied are: (i) that it should be a suit for possession; (ii) that the property to which the suit relates must be ancestral immovable property; and (iii) that the basis of the suit must be custom and that it should be alleged that the alienation is not binding on the plaintiff. If any of these conditions is wanting, the suit will not be governed by these Articles, but by some other Article and if there be no specific Article under which it can fall then by residuary Articles, such as Article 120 in the case of a suit for declaration and Article 144 in the case of a suit for possession.

It may here be mentioned that the language of Articles 1 and 2 of the Punjab Act is identically the same as that of our Act. It was pointed out by Achhru Ram J. in his judgment of dissent in the Full Bench case mentioned above that the finding that the Article in question cannot apply unless the suit property is ancestral qua the plaintiff, would create certain anomalies. This may be so, but since the language of the Articles is quite clear and unambiguous this cannot be a reason for not giving full effect to them. As Maxwell has observed at page 3 of his well-known treatise on the Interpretation of Statutes when the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. He makes the following observations at page 4:

However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words.

A reference may be made to the following passage which appears in the first and the introductory section of the said treatise:

A statute is the will of the Legislature and the fundamental rule of interpretation to which all others are subordinate, is that a statute is to be expounded according to the intent of them that made it. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature.

Viewed in the light of these principles, it is plain that Arts. 1 and 2 cannot apply unless, inter alia, the property which is the subject matter of the suit is ancestral immovable property. To lay down that even if the property be ancestral, the suit relating to it cannot be governed by the said Articles unless it be shown that the plaintiff cannot be granted the relief prayed for by him without alleging and proving that it was so, will be tantamount to holding that the framers of the Act intended something different from the language that they really used. The other important fact which has to be noticed in this connection is that the scope of the entire Act is confined to suits relating to alienations of ancestral immovable property. This is evident not only from the description of the Act but also of the pre-amble. The Act is described as an Act to amend and consolidate the law governing the limitation of suits relating to alienations of ancestral immovable property and appointment of heirs by persons who follow custom etc. The pre-amble reads as follows:

Whereas it is expedient to amend and consolidate the law governing the limitation of suits relating to alienations of ancestral immovable property and appointments of heirs by persons who follow custom in the Patiala State, it is hereby enacted etc. etc.

Personally I am of the opinion that the words of Articles 1 and 2 are quite clear, and they leave me in no doubt regarding the intention of the framers of the Act that they were to apply only to suits relating to ancestral immovable property; but since the appellant''s counsel does not accept this position and maintain that the matter is not free from doubt, it is permissible to refer to the pre-amble to resolve that doubt. The following observations appear at page 46 of Maxwell''s treatise:

The preamble of a Statute has been said to be a good means of finding out its meaning, and, as it were, a key to the understanding of it; and as it usually states, or professes to state the general object or intention of the Legislature in passing the enactment, it may legitimately be consulted to solve any ambiguity or to fix the meaning of words which may have more than one, or to keep the effect of the Act within its real scope whenever the enacting part is in any of these respects open to doubt. Thus S. 3, 26 Geo. III C. 107, empowered every person who had served in the militia and was married, to set up in trade in a corporate town, as freely as soldiers might under an earlier enactment, and declared that "no such militiaman" should be removable from the town until he became chargeable. It was open to doubt whether this expression included all married militiamen, or only married militiamen who had set up in trade in towns, and the preamble of an earlier Act fixed the latter as the true construction, it being stated that the mischief to be remedied was the state of the law which prevented soldiers from setting up in trade in corporate towns.

In the face of the words used in the preamble of the Act, no doubt can exist regarding the intention of the Legislature that the Act applies only to suits relating to ancestral immovable property and accordingly when the property which is the subject matter of a particular suit is not ancestral, it cannot be governed by Article 2. This view is also supported by what was held by Mahajan J. in the East Punjab Case mentioned above. This is what the learned Judge said:

For the reasons given above, I am of the opinion that the decisions in Lehna versus Mt. Thakri and in Mt. Attar Kaur v. Nikko should be held as not laying down a correct rule of law, and it should be held that property of a maternal grandfather in the hands of a daughter or of a grandson is not ancestral qua his descendants and therefore Act I of 1920 has no application to suits brought by such persons to challenge alienations by female owners. I am further of the opinion that the scope of Act I of 1920 is limited only to those kinds of suits which are brought to safeguard rights by collaterals in respect of ancestral immovable property on the rule laid down in Art. 59 of Rattigan''s Digest of Customary Law, and that the definition of ancestral property given in explanation 1 of Article 59 of Rattigan''s Digest of Customary Law is the definition in which that expression is used in Act 1 of 1920.

In view of what I have said above, my answer to the first question is that if all the other conditions mentioned in Article 2 are satisfied a suit for possession of the property alienated by a widow is governed by it.

As regards the second question, my answer is that the fact that the widow who made the alienation in question had no power to alienate even non-ancestral property is immaterial and so is the fact that in order to obtain relief it is not necessary for the plaintiffs to allege and prove that the property alienated is ancestral. In order to attract the application of Article 2, what is necessary inter alia is that the property should be ancestral. If the plaintiff alleges the property to be ancestral, and sticks to this allegation, even though the defendant joins issue with him on the point, he cannot be allowed to take up the position that since it was not necessary for him to prove the ancestral nature of the property, Article 2 does not apply. He must be pinned down to his allegation and the suit must be held to be governed by Article 2. If, on the other hand, the plaintiff goes back upon his allegation and either he succeeds in showing that the admission made by him regarding the ancestral nature of the property was wrong, or the admission is found to be wrong, Article 2 can have no application.

My answer to question No. 3 is that if a suit does not come within the ambit of Article 2, and it is a suit by a reversioner or a remainder even for possession of immovable property alienated by a female, like a customary widow, having a limited estate, it will be governed by Article 141 of the Limitation Act. The record of the case should be sent back to the single Bench for decision of other questions.

Gurnam Singh, J.

I entirely agree with my Lord the Chief Justice and have nothing to add.

Kesho Ram Passey, J.

I concur.

JUDGMENT

(The case having come before Teja Singh C.J. for decision of the questions His Lordship after summarising the answers given by the Full Bench to the questions referred proceeded as follows:)

It is argued by Mr. Tirath Singh, counsel for the appellant, that though in this case his clients did take up the position in the plaint that the suit property was ancestral qua them no evidence was adduced by them and accordingly the Courts below have rightly held that the property is not ancestral. As regards this fact, attention must be invited to the following observations that appear in the judgment of the Full Bench:

(After referring to the observations in the judgment of the Full Bench (Vide para 10 above) His Lordship proceeded:)

It is true that the plaintiffs adduced no evidence to prove that the property was ancestral qua them, but they never gave up the position that they took up originally in the plaint even though the other side denied the ancestral nature of the property. In the circumstances the finding of the Courts below that the property was not ancestral means that the plaintiffs had failed to prove that it was ancestral and not that the plaintiffs'' allegation was wrong. I, therefore, hold that the conditions laid down in the order of the Full Bench are not satisfied and since the plaintiffs'' own position was that the property was ancestral they must be pinned down to those allegations and it must be held that on the plaintiffs'' own showing the case is governed by Article 2. Since in this case no declaratory decree had been obtained and according to Article 2 limitation period for a suit for possession is six years from the date of the alienation and the present suit was admittedly instituted more than six years after the alienation, it is barred by time.

The result is that the appeal fails and is dismissed. In the peculiar circumstances of the case the parties are left to bear their own costs throughout.